Page:The English Reports v1 1900.pdf/539

and it was further ordered and adjudged, by consent of both the appellant and respondent, expressly declared at the bar of the House, that the first minutes, or note of the agreement between the said appellant and respondent, dated the 22d of July 1720, and likewise the articles executed in pursuance thereof, dated the next day, should be delivered up and cancelled, and that the appellant should forthwith deliver possession of the estate, or so much thereof as he was possessed of, to the respondent; and also deliver to the respondent all the deeds and writings relating to the estate in quesion: and, that the respondent should retain to his own use, without account, all the money which he had received from the appellant, in part of the said purchase; and that a bill filed by the appellant against the respondent,^[1] to set aside the agreement and articles, should be dismissed by the appellant without costs; and that general releases should be mutually given by the appellant and respondent to each other. Jour. vol. 22. p. 309.

In Trinity term 1721, an action of debt for £2800 was brought by the plaintiff against the defendant, in the Court of Common Pleas; and the plaintiff by his declaration set forth, that by deed dated the 17th of September 1720, it was witnessed that he had sold the defendant £200 South-Sea stock; and covenanted, that upon the tender and payment by the defendant of the sum of £1360, on or before the day of shutting the company's transfer books, in order to make the Christmas dividend, he, the plaintiff, would transfer to the defendant the said £200 South-Sea stock, and permit him to receive all future dividends and advantages, which should be allowed by the company on that account. And the defendant, in consideration of the premises, covenanted that he would, upon or before the said day of shutting the company's transfer-books, in order to make the Christmas dividend, accept, or cause to be accepted, the said £200 stock from the plaintiff, and then also pay therefore proinde the sum of £1360. Provided, that if the defendant should refuse to accept and pay for the said stock, it should be lawful for the plaintiff to dispose of it at the then market price, and out of that money pay himself the said £1360, returning the overplus, if any, to the defendant; but if the money arising by such sale should prove insufficient to satisfy that sum, then the defendant was to make good the deficiency to the plaintiff upon demand; and for the due performance of this agreement, each party bound himself to the other in the penal sum of £2800. That the plaintiff had truly performed all the covenants and agreements in the said deed, on his part to be performed; but that the defendant had not performed the agreement on his part. That the company's transfer-books continued open till the 23d of December 1720, and then were shut in order to make the Christmas dividend, of which the defendant had notice. That the plaintiff, for the space of an hour before the shutting of the said books, was at the company's office called the South-Sea House, and was all that time